MARTONE v. JET AVIATION FLIGHT SERVICES, INC. et al

Filing 43

OPINION. Signed by Judge Brian R. Martinotti on 4/26/2021. (sm)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
KATHRYN MARTONE,
Plaintiff,
v.
JET AVIATION FLIGHT SERVICES, INC.,
RUSSELL OKRENT, LEON BLACK, AND
DEBRA BLACK,

Case No. 2:19-cv-21011 (BRM) (ESK)
OPINION

Defendants.
MARTINOTTI, DISTRICT JUDGE
Before this Court is a Motion to Dismiss (ECF No. 35) filed by Defendants Jet Aviation
Flights Services, Inc. (“JAFS”), Russell Okrent (“Okrent”), and Leon Black and Debra Black (the
“Blacks”) (collectively, “Defendants”) seeking to dismiss Plaintiff Kathryn Martone’s (“Plaintiff”)
Amended Complaint (“Amended Complaint” or “Am. Compl.”) pursuant to Federal Rule of Civil
Procedure 12(b)(6). Plaintiff opposes the motion. (ECF No. 36.) Pursuant to Federal Rule of Civil
Procedure 78(b), this Court did not hear oral argument. For the reasons set forth herein and for
good cause shown, Defendants’ Motion to Dismiss (ECF No. 35) is DENIED.

I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY 1
In considering this Motion to Dismiss, the Court accepts the factual allegations in the

Amended Complaint as true and draws all inferences in the light most favorable to Plaintiff. See
Phillips v. Cnty. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008).
This matter stems from the termination of Plaintiff, a Cabin Safety Attendant, from JAFS,
a private airline company that provides charter services for private business aircrafts, for alleged
retaliation for reporting unsafe operational and workplace safety practices as well as unlawful
discrimination and harassment. Plaintiff alleges the Blacks were decision-makers with respect to
hiring and firing, and JAFS and the Blacks, at all relevant times, employed more than fifteen
employees, including Plaintiff. (See ECF No. 32 ¶¶ 19, 22.)
Plaintiff was hired by JAFS and the Blacks in or about May 2018. (Id. ¶¶ 27, 29.) 2 As a
Cabin Safety Attendant, Plaintiff worked with the flight crew or “team” to ensure passenger safety
and comfort on flights. (Id. ¶ 29.) Plaintiff excelled at her position, received substantial praise from
crew and clients, and was informed numerous times by Lead Captain Chris Mihok (“Mihok”) that
she was doing “a great job.” (Id. ¶ 33.) Moreover, Plaintiff had never received any negative
evaluations or reports on her job performance. (Id. ¶ 34.)
Throughout her employment with JAFS and the Blacks, Plaintiff was “consistently treated
differently, yelled at, verbally abused, and disrespected on the basis of her sex.” (Id. ¶ 35.) The
other three members of Plaintiff’s team, all of whom were male, were not treated in the same

1

The Court refers the reader to the Court’s February 28, 2020 Opinion for additional factual and
procedural background (See ECF No. 31.)
2

JAFS was retained by the Blacks to provide jet charter services for a Gulfstream 650 business jet
airplane, which is owned by the Blacks. (Id. ¶ 26.)
2

“negative, abusive and disrespectful matter” as Plaintiff. (Id. ¶ 36.) In particular, Okrent, a JAFS
pilot on Plaintiff’s team, consistently “singled out” Plaintiff by subjecting her to verbal abuse and
harassment on a daily basis. (Id. ¶ 37.) Okrent also made negative comments or jokes about
women, including: (1) where a woman’s “proper place” was; (2) that older, specifically female,
flight attendants were “useless”; and (3) sexually graphic comments like “I feel like I was rode
hard and put away wet,” after almost every long flight. (Id. ¶¶ 41, 42, 44.) 3 When Plaintiff voiced
her concerns about these comments to Mihok in front of Okrent, Okrent told Plaintiff to “chill
out.” (Id. ¶ 44.) Further, if Plaintiff attempted to reference the size of something using her hands,
for example, to indicate a small amount, Mihok would say, “you can’t do that in front of a man,
we are sensitize to size.” (Id. ¶ 45.) Plaintiff alleges sexual comments “were made on every, or
nearly every trip” Plaintiff worked on with JAFS. (Id. ¶ 46.)
In addition to “numerous instances of harassment and discrimination on the basis of her
sex,” Plaintiff, who was appointed Safety Representative by Matt Feinstein (“Feinstein”), a JAFS
Safety Officer, consistently sought and requested operational safety procedures and protocols for
the safety of passengers and crew, but her requests were “ignored or dismissed” or ridiculed. (Id. ¶¶
48–49.) The Flights Operations Manual Section 5.3.3 (“Operations Manual”) states what
information should be reviewed before each flight. (Id. ¶ 51.) Her repeated requests for safety
briefings, which were intended to ensure crew and passenger safety and help the pilots understand
the desired sequence of events and action, were often ignored or met with “scorn and annoyance.”
(Id. ¶¶ 53, 55.) For example, when Plaintiff made requests for weather and turbulence prediction
reports, Okrent would generally respond by “laughing, sighing, or making inappropriate

3

Plaintiff alleges both Mihok and Okrent made sexually graphic comments. (Id. ¶ 44.)
3

comments.” (Id. ¶ 56.) On one occasion, in response to a request for a weather report, Okrent
replied “I don’t know and I don’t care,” and stated he “didn’t even look at [weather reports].”
(Id. ¶¶ 57–58.) 4 Plaintiff, believing Defendants, and in particular Okrent’s “blatant lack of interest
in aviation safety” was “in violation of a law or rule or public regulation . . . [or] . . . public policy,”
brought her concerns to Mihok. (Id. ¶ 60.) 5 In response, Mihok noted Okrent apologized and asked
Plaintiff “what more” she wanted, “implying that her valid safety concerns and requests to follow
proper procedures were unimportant and bothersome.” (Id. ¶ 62.) In another incident, Plaintiff
messaged Mihok about a flight in which Okrent turned off all cabin power and lights thereby
creating a potential safety hazard. (Id. ¶ 64.) When Plaintiff asked Okrent what happened with the
loss of power and lights, Okrent responded, “I pushed a wrong button, leave me alone.” (Id. ¶ 65.)
Plaintiff also requested to Mihok and another crew member, Ben Robertson, that she be kept
informed of all information and developments relating to a flight but received no response.
(Id. ¶ 67.) When Plaintiff complained to Mihok about sex discrimination and harassment and her
concerns that Defendants were in violation of a law, regulation, or public policy as a result of,
among other things, Defendants’ “failure to provide weather/turbulence reports and crew
briefings,” Plaintiff was told to “let it go.” (Id. ¶¶ 70–71.)
Following her complaints to Mihok, the team continued to harass Plaintiff and dismiss her
safety concerns and attempts to follow regulation and procedure. (Id. ¶ 72.) Accordingly, on
August 23, 2019, Plaintiff reported her concerns to a new supervisor, Cabin Attendant Supervisor

4

Plaintiff contends the weather and turbulence prediction reports and crew briefings were “integral
to the safety of the crew and passengers.” (Id. ¶ 59.)
5

Plaintiff asserts she believed Defendants were violating “orders, regulations, and/or standards of
the Federal Aviation Administration (FAA) and/or other provisions of Federal law relating to air
carrier safety.” (Id. ¶ 68.)
4

Dani Mickel (“Mickel”). (Id. ¶ 73.) Mickel “made an excuse” for every incident of discrimination,
harassment, and Defendants’ dismissal of her attempts to ensure proper safety in the aircraft, and
Plaintiff was again told to “let it go.” (Id. ¶¶ 75–76.) Thereafter, Plaintiff contacted Courtney
Mazzola of Human Resources (“Mazzola”) and informed Mazzola that neither Mihok nor Mickel
took her complaints about discrimination and harassment or workplace safety seriously. (Id. ¶ 77.)
Plaintiff also requested a meeting with all the pilots to discuss her concerns, which never happened.
(Id. ¶ 78.) 6
On September 6, 2019, Plaintiff sent an email to all three pilots on her crew officially
requesting crew briefings in accordance with the Operations Manual. (Id. ¶ 80.) In the email,
Plaintiff wrote:
Hey guys, going forward on all trips I would like to have full crew
briefing[s] at some point during our [pre-departure] duties as it states
in our Flight Operation Manual. (section 5.3.3). [It’s] really
important to me for good [crew resource management], as well as
being important to the safety of the passengers and all crew.
(Id.) On the next trip, scheduled for September 14, 2019, Plaintiff discovered the aircraft was
broken which would delay departure. (Id. ¶ 81.) She learned all the male members of her crew
were aware of the delay but had not informed her. (Id.) On the following trip on September 17,
2019, Okrent approached Plaintiff as she was checking into a hotel and pulled her to the side. (Id. ¶
83.) Okrent mocked Plaintiff’s September 6, 2019 email and informed her he did not appreciate
her complaints about him to JAFS and Human Resources. (Id. ¶ 86.) Plaintiff informed Okrent she
had tried communicating her complaints to Okrent directly but he either ignored her or criticized
her. (Id. ¶ 87.) At some point, the conversation between Plaintiff and Okrent escalated and a hotel

6

Despite the ongoing issues, Plaintiff “continued to perform her duties in an excellent manner,
while seeking ways to improve the communication and teamwork between her and her team.”
(Id. ¶ 79.)
5

manager approached them and requested they “take their conversation elsewhere.” (Id. ¶ 92.)
Plaintiff “extricated herself” to go to her hotel room and texted Okrent to inform him she would
no longer have any non-work-related conversations with him, and any issues between them should
be discussed at the upcoming meeting Plaintiff previously requested. (Id. ¶ 93.) Plaintiff also
immediately contacted Human Resources concerning the confrontation in the hotel lobby. (Id. ¶
94.) Plaintiff further commented to Human Resources she had been “complaining for months about
sex discrimination, sexual harassment and violations of what she believed to be laws regulations
or safety issues” but was ignored by JAFS and her crew. (Id. ¶ 96.)
Later that day, Plaintiff’s supervisor escorted her to meet with Mazzola and an account
manager. (Id. ¶ 98.) At this meeting, Plaintiff was told she was being “grounded” for her
“aggressive behavior” involving Okrent in the hotel lobby. (Id. ¶ 99.) While Plaintiff tried to
explain “the reality of the situation,” namely that despite “repeatedly stating that their issues should
be discussed at a proper meeting,” Okrent “cornered her” for purposes of harassing and verbally
abusing her. (Id. ¶ 100.) Mazzola “ignored” Plaintiff’s version of the incident and told Plaintiff
she would not be on the next trip and was not to contact the Blacks concerning the situation.
(Id. ¶ 101.) Plaintiff inquired as to whether Okrent was being “grounded” and was told he was.
(Id. ¶ 102.) Plaintiff also alleges, on September 5, 2019, significantly prior to her interaction with
Okrent, but after Plaintiff made repeated complaints, Plaintiff learned she had been removed from
a trip scheduled for September 8, 2019. (See id. ¶ 103.)
After the meeting with Mazzola on September 17, 2019, Plaintiff wrote Mazzola a detailed
version of her account of what transpired between herself and Okrent in the hotel lobby as well as
a copy of the text she sent to Okrent. (Id. ¶ 104.) Thereafter, Plaintiff was removed from the work
schedule (id. ¶ 105) and discovered Okrent had not been grounded and was still permitted to fly.

6

(Id. ¶ 107.) On September 21, 2019, Plaintiff emailed Mazzola asking why she was still grounded
and had been entirely removed from the work schedule while Okrent still had several upcoming
flights. (Id. ¶ 108.) Plaintiff also emailed David deBang (“deBang”), Senior Account Director of
JAFS, asking when the crew meeting would take place, as she had been removed from the schedule
and had no upcoming trips. (Id. ¶ 109.) DeBang responded the meeting was scheduled for
September 27, 2019. (Id. ¶ 110.) Plaintiff also asked what the Blacks were told concerning her
grounding. (Id. ¶ 111.) DeBang responded the Blacks were fully aware of the entire situation,
“including [Plaintiff’s] complaints about discrimination, harassment, and workplace safety
issues.” (Id.) At some point, Plaintiff was informed an investigation into Plaintiff’s complaints and
the incident between herself and Okrent would take place. (See id. ¶ 112.) On September 23, 2019,
Plaintiff emailed Mazzola to inquire (1) why she had not been placed back on the work schedule
and (2) to follow up on the alleged investigation. (Id. ¶ 113.) 7 In response, Mazzola advised she
was “still gathering the final details,” but would “finish shortly.” (Id. ¶ 117.) On September 27,
2019, the day of the scheduled meeting, Plaintiff was terminated. (Id. ¶ 118.) 8 On October 25,
2019, Plaintiff filed a retaliation complaint with the Occupational Safety and Health
Administration (“OSHA”). (Id. ¶ 1 n.1.)
Though there was a meeting scheduled to discuss Plaintiff’s complaints, this meeting never
took place and the complaints “were never discussed at the meeting or anytime thereafter.” (Id. ¶
120.) JAFS claimed “nothing came up” during their investigation and “merely stated” they had

7

In this follow-up email, Plaintiff reiterated Okrent’s unprofessional behavior was in “violation of
the Company handbook, and that she had complained about his wrongful behavior, which included
discrimination, harassment and violations of workplace safety standards, for months.” (Id. ¶ 114.)
8

Plaintiff notes she was terminated less than two months before she was to receive a “significant
bonus of $25,000.” (Id. ¶ 121.)
7

chosen to “end the business relationship” with Plaintiff. (Id. ) Plaintiff also discovered after she
began raising concerns about workplace safety, Defendants, including Okrent, asked Feinstein to
remove Plaintiff from her role as Safety Representative. (Id. ¶ 133.) Plaintiff also contends
Defendants now claim, “as a litigation position in response to [Plaintiff’s] OSHA Complaint,”
Plaintiff’s employment was terminated as a result of her “abusive behavior” toward Okrent, which
according to Plaintiff, is “completely incompatible” with Defendants’ previous reason for her
termination —namely, Defendants’ initial failure to provide Plaintiff a reason for her termination
and indication she was eligible for rehire. (Id. ¶ 135.)
On December 4, 2019, Plaintiff filed a complaint alleging Defendants violated the New
Jersey Conscientious Employee Protection Act, N.J. Stat. Ann. § 34:19-1, et seq. (“CEPA”) and
the New Jersey Law Against Discrimination, N.J. Stat. Ann. § 10:5-1, et seq. (“NJLAD”). (ECF
No. 1.) On March 18, 2020, Defendants moved to dismiss Plaintiff’s complaint for failure to state
a claim. (ECF No. 13.) On April 20, 2020, Plaintiff filed an opposition. (ECF No. 23.) On July 13,
2020, the Court granted Defendants’ motion to dismiss and permitted Plaintiff to file an amended
complaint. (ECF Nos. 30 and 31.) 9 On August 3, 2020, Plaintiff filed an amended complaint
alleging Defendants violated CEPA, NJLAD, and Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e–2, et seq. (“Title VII”). (ECF No. 32.) On August 31, 2020, Defendants filed the
Motion to Dismiss. (ECF No. 35.) On September 21, 2020, Plaintiff filed an Opposition.
(ECF No. 36.) On September 28, 2020, Defendants filed a Reply. (ECF No. 38.)

9

Specifically, Plaintiff sought to add a claim pursuant to Title VII of the Civil Rights Act of 1964
(“Title VII”). The Title VII claim was not included in Plaintiff’s initial complaint because Plaintiff
had not yet exhausted her administrative remedies. At oral argument, Plaintiff’s counsel
represented to the Court he was in the process of obtaining a Right to Sue letter from the Equal
Employment Opportunity Commission. (See ECF No. 30.)
8

II.

LEGAL STANDARD
In deciding a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a

district court is “required to accept as true all factual allegations in the complaint and draw all
inferences in the facts alleged in the light most favorable to the [plaintiff].” Phillips v. Cnty. of
Allegheny, 515 F.3d 224, 228 (3d Cir. 2008). “[A] complaint attacked by a Rule 12(b)(6) motion
to dismiss does not need detailed factual allegations.” Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007) (citations omitted). However, the plaintiff’s “obligation to provide the ‘grounds’
of [her] ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286
(1986)). A court is “not bound to accept as true a legal conclusion couched as a factual allegation.”
Papasan, 478 U.S. at 286. Instead, assuming the factual allegations in the complaint are true, those
“[f]actual allegations must be enough to raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555.
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 570). “A claim has facial plausibility when the
pleaded factual content allows the court to draw the reasonable inference that the defendant is
liable for misconduct alleged.” Id. This “plausibility standard” requires the complaint allege “more
than a sheer possibility that a defendant has acted unlawfully,” but it “is not akin to a probability
requirement.’” Id. (quoting Twombly, 550 U.S. at 556). “Detailed factual allegations” are not
required, but “more than an unadorned, the defendant-harmed-me accusation” must be pled; it
must include “factual enhancements” and not just conclusory statements or a recitation of the
elements of a cause of action. Id. (citing Twombly, 550 U.S. at 555, 557).

9

“Determining whether a complaint states a plausible claim for relief [is] . . . a contextspecific task that requires the reviewing court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679. “[W]here the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint has alleged—but it has not
‘show[n]’—‘that the pleader is entitled to relief.’” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).
However, courts are “not compelled to accept ‘unsupported conclusions and unwarranted
inferences,’” Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007) (quoting Schuylkill Energy
Res. Inc. v. Pa. Power & Light Co., 113 F.3d 405, 417 (3d Cir. 1997)), nor “a legal conclusion
couched as a factual allegation.” Papasan, 478 U.S. at 286.
While, as a general rule, the court may not consider anything beyond the four corners of
the complaint on a motion to dismiss pursuant to Rule 12(b)(6), the Third Circuit has held that “a
court may consider certain narrowly defined types of material without converting the motion to
dismiss [to one for summary judgment pursuant to Rule 56].” In re Rockefeller Ctr. Props. Sec.
Litig., 184 F.3d 280, 287 (3d Cir. 1999). Specifically, courts may consider any “document integral
to or explicitly relied upon in the complaint.” In re Burlington Coat Factory, 114 F.3d at 1426
(quoting Shaw v. Dig. Equip. Corp., 82 F.3d 1194, 1220 (1st Cir. 1996)).
III.

DECISION
Plaintiff asserts three separate claims against Defendants. The Court will address each one

in turn.
A.

CEPA (Count I)

Defendants argue, in part, Plaintiff’s Amended Complaint fails to state a claim under CEPA
because: (1) Plaintiff’s newly-added allegation that after she began raising concerns about safety
issues, Defendants, including Okrent, asked Feinstein to remove Plaintiff from the role of Safety

10

Representative is “meaningless,” and fails, once again, to support a CEPA claim; (2) Plaintiff’s
allegation that Defendants represented to OSHA inconsistent reasons for her termination will also
not save Plaintiff’s claim because Defendants’ reason for termination is not inconsistent and
Plaintiff is merely alleging “exactly the same chronology as before”; and (3) even if Plaintiff
engaged in protected activity, the Airline Deregulation Act (“ADA”) preempts Plaintiff’s CEPA
claim requiring its dismissal. (ECF No. 35-1 at 17–20.) 10 Plaintiff opposes, arguing: (1) after she
complained about Defendants’ safety issues she was retaliated against by Defendants who sought
to have her removed from her role as Safety Representative; (2) Defendants initially failed to
provide any specific reasons for Plaintiff’s termination and indicated she was eligible for rehire; 11
and (3) case law and the facts of this case demonstrate the ADA does not preempt Plaintiff’s CEPA
claim. (ECF No. 36-2 at 21–24.)
CEPA aims to afford broad protection to employees who report suspected violations of law
or public policy from an employer’s retaliatory acts. See N.J. Stat. Ann. § 34:19-1 et seq. A plaintiff
seeking to demonstrate a prima facie case under CEPA must allege: (1) the plaintiff reasonably
believed the employer’s conduct violated a law or regulation; (2) the plaintiff performed “whistle-

10

Defendants also contend Plaintiff failed to allege she engaged in protected activity under CEPA.
(ECF No. 35-1 at 19.) Defendants argue Plaintiff “cites again to JAFS’[s] [Operations Manual]
. . . ,” which is not a law, rule or regulation, and therefore, Plaintiff’s complaints did not constitute
whistleblowing activity. (Id. at 19–20.) The Court does not agree with this characterization.
Plaintiff alleges she believed Defendants were violating the Operations Manual, as well as “a law
or rule or regulation issued under the law, or incompatible with, a clear mandate of public policy,”
including “standards of the Federal Aviation Administration (FAA)” and other “federal law
relating to air carrier safety.” (ECF No. 32 ¶ 68.) CEPA does not require Plaintiff to show her
employer actually violated the law or public policy, rather, Plaintiff must simply show she
“reasonably believes” Defendants’ conduct violated a law or regulation. Plaintiff has satisfied that
burden. See Blackburn v. United Parcel Serv., Inc., 179 F.3d 81, 91 (3d Cir. 1999).
11

According to Plaintiff, Defendants, in an effort to “cover up the real reason for her termination—
retaliation,” now assert Plaintiff was terminated as a result of “abusive behavior,” toward Okrent.
11

blowing activity” as defined in CEPA; (3) an adverse employment action has been taken against
her; and (4) the whistle-blowing activity caused such adverse employment action. See Kolb v.
Burns, 727 A.2d 525, 530 (N.J. Super. Ct. App. Div. 1999); Dzwonar v. McDevitt, 828 A.2d 893,
900 (N.J. 2003). CEPA covers employee complaints about activities the employee reasonably
believes are: (1) in violation of a specific statute or regulation; (2) fraudulent or criminal; or (3)
incompatible with policies concerning public health, safety, or welfare or the protection of the
environment. See Estate of Roach v. TRW, Inc., 754 A.2d 544, 550 (N.J. 2000). However, “CEPA
does not require that the activity complained of . . . be an actual violation of a law or regulation,
only that the employee ‘reasonably believes’ that to be the case.” Id. at 552.
Once a plaintiff has established a prima facie case under CEPA, courts employ the burdenshifting analysis that is used in federal discrimination cases involving “pretext” claims. Blackburn
v. United Parcel Servs., Inc., 179 F.3d 81, 92 (3d Cir. 1999). Under this test, “the burden of
production shifts to the defendant to ‘articulate some legitimate, nondiscriminatory reason’ for its
actions.” Woodson v. Scott Paper Co., 109 F.3d 913, 920 n.2 (3d. Cir. 1997) (quoting McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Once the defendant articulates a legitimate
reason for the adverse employment action, the burden shifts back to the plaintiff. See id. Then, “the
plaintiff must convince the factfinder ‘both that the reason [given by the employer] was false, and
that [retaliation] was the real reason.’” Id. (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,
515 (1993)).
Here, the Amended Complaint does not actually allege Plaintiff was removed from her
position as Safety Representative. Therefore, Plaintiff has failed to allege this specific adverse
employment action was taken against her. Rickerson v. Pinnacle Foods Inc., Civ. A. No.

12

21704469, 2017 WL 6034147, at *3 (D.N.J. Dec. 6, 2017). 12 Plaintiff cites the same two incidents
as her previous complaint to demonstrate Defendants’ retaliatory conduct. First, Plaintiff states
that on September 5, 2019, following her complaints, she learned she was removed from a trip that
had been scheduled for September 8, 2019. (ECF No. 32 ¶ 103.) Second, Plaintiff states she
complained to Human Resources on September 17, 2019, following a verbal altercation in a hotel
lobby between her and Okrent that became so confrontational it required the intervention of a hotel
manager. (Id. ¶ 104.) Following her report, Defendants first removed Plaintiff from the upcoming
flight schedule and then terminated her ten days later. (See id. ¶¶ 105, 118.) The Amended
Complaint also alleges that in an email exchange dated September 21, 2019 between deBang and
Plaintiff, deBang conveyed “the Blacks were aware of the entire situation including [Plaintiff’s]
complaints about discrimination, harassment, and workplace safety issues.” (Id. ¶ 111.) Thereafter,
just six days later, on September 27, 2019, Plaintiff was terminated.
At this juncture, and in particular where the Amended Complaint alleges the Blacks had
knowledge or awareness of Plaintiff’s whistleblowing activity, the Court cannot say Plaintiff has
failed to allege any facts suggesting pretextual retaliation. Ragan v. Fuentes, Civ. A. No. 05-2825,

12

A “retaliatory action” for purposes of CEPA “means the discharge, suspension, or demotion of
an employee, or other adverse employment action taken against an employee in terms and
conditions of employment.” N.J. Stat. Ann. § 34:19-2(e). Interpreting that language, some courts
have held the employer’s action must affect the employee’s compensation or rank, or “be virtually
equivalent to discharge.” Klein v. Univ. of Med. & Dentistry of N.J., 871 A.2d 681, 691 (N.J. Super.
Ct. App. Div. 2005); see also Caver v. City of Trenton, 420 F.3d 243, 249 (3d Cir. 2005). Other
decisions, with which Court agrees, have taken a somewhat broader view. Examples of actionable
retaliatory acts have included suspensions, demotions, changes to the length of the workday,
changes in salary, hours, fringe benefits, or “physical arrangements and facilities,” and altered
“promotional procedures.” Beasley v. Passaic Cnty., 873 A.2d 673, 685–86 (N.J. Super. Ct. App.
Div. 2005); Southward v. Elizabeth Bd. of Educ., Civ. A. No.15-3699, 2017 WL 111924, at *5
(D.N.J. Jan. 11, 2017).

13

2007 WL 2892948, at *8 (D.N.J. Sept. 28, 2007). Moreover, where, as here, a plaintiff alleges an
employer provided inconsistent explanations for the challenged employment action, that
circumstance can be relevant to a determination of causation. See Cohen v. BH Media Grp., Inc.,
419 F. Supp. 3d 831, 857 (D.N.J. 2019) (noting that retaliation can be inferred from
“inconsistencies or contradictions in the employer’s proffered legitimate reasons for its action”);
Levins v. Braccia, Civ. A. No. 4290-07T2, 2009 WL 1658610, at *7 (N.J. Super. Ct. App. Div.
June 16, 2009). Therefore, the Court finds Plaintiff’s CEPA claim is sufficient to withstand the
Motion to Dismiss.13
Next, the Court turns to the issue of whether the ADA expressly preempts Plaintiff’s CEPA
claim. Defendants argue the ADA preempts Plaintiff’s CEPA claim because her complaints “relate
to” the “services of an air carrier” which requires dismissal under the ADA. (ECF No. 35-1 at 7.)
Plaintiff opposes, arguing her claim does not “implicate the service of a flight” but rather pertains
to “weather reports and crew briefings that Defendant refused to provide, which put passenger and
crew safety at risk,” and therefore, does not require dismissal. (ECF No. 36-2 at 25.)
“Congress enacted the ADA in 1978 to prevent the states from re-regulating airline
operations so that competitive market forces could function.” Gary v. The Air Grp., Inc., 397 F.3d
183, 186 (3d Cir. 2005) (citations omitted). The ADA includes a preemption clause: “a State . . .
13

The Court notes “[o]ne way that a plaintiff may establish causation through circumstantial
evidence is by showing a temporal proximity between the protected conduct and the alleged
retaliation.” Perry v. Lee, Civ. A. No. 1917899, 2020 WL 3396805, at *7 (D.N.J. June 19, 2020)
(citing Choy v. Comcast Cable Comms., LLC, 629 F. App’x 362, 365 (3d Cir. 2015)). It is,
however, “important to emphasize that it is causation, not temporal proximity itself, that is an
element of plaintiff’s prima facie case, and temporal proximity merely provides an evidentiary
basis from which an inference can be drawn.” Cohen v. BH Media Grp., Inc., 419 F. Supp. 3d 831,
856 (D.N.J. 2019). Indeed, there may be “valid reasons why the adverse employment action was
not taken immediately, the absence of immediacy between the cause and effect does not disprove
causation.” Johnson–Winters v. Redner’s Mkt. Inc., 610 F. App’x 149, 154 (3d Cir. 2015).
14

may not enact or enforce a law, regulation, or other provision having the force and effect of law
related to a price, route, or service of an air carrier that may provide air transportation.” 49 U.S.C.
§ 41713(b)(1). “Services” include, at the very least, the “prices, schedules, origins and destinations
of the point-to-point transportation of passengers, cargo, or mail.” Taj Mahal Travel, Inc. v. Delta
Airlines, Inc., 164 F.3d 186, 193 (3d Cir. 1998) (approving of the Ninth Circuit’s definition of
“services” in Charas v. Trans World Airlines, Inc., 160 F.3d 1259, 1261 (9th Cir. 1998) (en banc)).
But state law is not preempted if the claim has a connection to flight services that is “too tenuous,
remote, or peripheral a manner to have pre-emptive effect.” Morales Trans World Airlines, Inc.,
504 U.S. 374, 390 (1992) (internal citations omitted); see, e.g., Anderson v. Am. Airlines, Inc., 2
F.3d 590, 597 (5th Cir. 1993) (finding that a claim based on an airline’s alleged retaliation against
a mechanic for filing a workers’ compensation action was not preempted because “[a]ny effect
that such a claim may have on American’s services is far too remote to trigger pre-emption”).
Here, the central issue is whether Plaintiff’s claim of retaliation for objecting to workplace
safety has a “forbidden significant effect” upon an air-carrier’s “point-to-point transportation,” or
whether the connection to this service is “too tenuous, remote, or peripheral.” Flashman v. Jet
Aviation Flight Servs., Inc., Civ. A. No. 14-1287, 2014 WL 4930909, at *3 (D.N.J. Oct. 1, 2014).
The connection, however, between Plaintiff’s CEPA claim, purportedly based on her objection to
Defendants’ workplace safety conditions and point-to-point transportation, is “simply too remote
and too attenuated,” Gary, 397 F.3d at 189, and therefore, “cannot be deemed to be related to the
‘service of an air carrier,’” id. at 189 n.6. Instead, Plaintiff’s actions are “more properly viewed as
comparable to a garden variety employment claim.” Id. at 189 (reversing and holding that
plaintiff’s state law whistleblower claim was not “related to” the “service of an air carrier” within
the meaning of the ADA, and therefore plaintiff’s retaliation claim was not preempted by the

15

ADA); Cunningham v. Jet Aviation Flight Servs., Inc., Civ. A. No. 12-6594, 2013 WL 1758617,
at *4 (D.N.J. Apr. 24, 2013) (providing that “to the extent [p]laintiff’s state law claims arise from
her complaints concerning [cabin service representative] training, those claims are not preempted
and will not be dismissed pursuant to Rule 12(b)(6)”).
Accordingly, for the reasons set forth above, Defendants’ Motion to Dismiss the CEPA
claim is DENIED. 14
B.

Title VII (Count II) and NJLAD (Count III) 15

Plaintiff asserts two causes of action under Title VII 16 and NJLAD: (1) sex-based
discrimination based on a hostile work environment; and (2) retaliatory discharge. Defendants

14

The Court notes while CEPA primarily imposes liability for retaliatory acts upon an
“employer”—here, the Blacks and JAFS, (see ECF No. 32 at 5), the Court finds dismissing the
CEPA claim against any individual non-employer defendant, namely Okrent, is premature.
Following discovery, however, Plaintiff will be required to demonstrate the kind of personal
involvement that would render each individual defendant liable. Southward v. Elizabeth Bd. of
Educ., Civ. A. No. 15-3699, 2017 WL 111924, at *11 (D.N.J. Jan. 11, 2017) (providing that under
CEPA an “employer” also includes a “person or group of persons acting directly or indirectly on
behalf of or in the interest of an employer with the employer’s consent,” which means “CEPA
liability may attach to individuals who perform retaliatory acts with the authorization of their
employers”) (citing N.J. Stat. Ann. § 34:19-2(a); Bowen v. Parking Auth. of City of Camden, Civ.
A. No. 00-5765, 2003 WL 22145814, at *22 (D.N.J. Sept. 18, 2003)).
15

Because New Jersey courts “have frequently looked to case law under Title VII . . . for guidance
in developing standards to govern the resolution of LAD claims,” the Court will analyze the
NJLAD claims together with the Title VII claims. Stallone v. Camden Cnty. Tech. Sch. Bd. of
Educ., Civ. A. No. 12-7356, 2013 WL 5178728, at *3 (D.N.J. Sept. 13, 2013); Schurr v. Resorts
Int’l Hotel, Inc., 196 F.3d 486, 498 (3d Cir. 1999) (providing that an analysis of claims made
pursuant to NJLAD generally follows the analysis of Title VII claims); see Newton-Haskoor v.
Coface N. Am., Civ. A. No. 11-3931, 2012 WL 1813102, at *7 (D.N.J. May 17, 2012), aff’d, 524
F. App’x 808 (3d Cir. 2013).
16

In order to pursue claims under Title VII in federal court, a plaintiff must first exhaust
administrative remedies by timely filing an EEOC charge and receiving a notice of the right to sue.
Kirman v. United Parcel Serv., Inc., Civ. A. No. 15-2357, 2015 WL 7720494, at *7 (D.N.J. Nov.
30, 2015). “[T]he parameters of the civil action in the district court are defined by the scope of the
EEOC investigation which can reasonably be expected to grow out of the charge of discrimination,
including new acts which occurred during the pendency of proceedings before the [EEOC].”
16

contend these claims fail because Plaintiff failed to plausibly allege facts necessary to infer
discriminatory intent. (ECF No. 35-1 at 12–13.)
i.

Title VII and NJLAD Sex-based discrimination 17

Defendants contend “the amended complaint is no less conclusory than the original
complaint.” (ECF No. 35-1 at 12.) Specifically, according to Defendants, “Plaintiff reiterates her
original allegations with the addition of four claims [of] sexist comments attributed to Okrent and
Mihok, from an unknown time.” (Id.) Plaintiff alleges the Amended Complaint demonstrates an
inference of sex discrimination and points to the following newly added allegations:
•
•
•

Comments regarding a woman’s “proper place.” (ECF No.
1 ¶ 42);
Comments that older, female flight attendants were “useless”
(Id. ¶ 43);
Sexual comments made “[a]fter almost every flight” such as “I
feel like I was rode hard and put away wet.” (Id. ¶ 44); and

Mandel v. M&O Packaging Corp., 706 F.3d 157, 163 (3d Cir. 2013) (quoting Ostapowicz v.
Johnson Bronze Co., 541 F.2d 394, 398–99 (3d Cir. 1976)). Here, Plaintiff alleges on July 27,
2020, the EEOC issued Plaintiff a Notice of Right to Sue. (ECF No. 32 ¶ 7.) See Martone v. Jet
Aviation Flight Servs. Inc., Civ. A. No. 219-21011 (BRM) (SCM), 2020 WL 3969919, at *7
(D.N.J. July 13, 2020) (noting that at oral argument, Plaintiff’s counsel “represent[ed] to the Court
he was in the process of obtaining a Right to Sue letter from the [EEOC]” and requested leave to
amend the complaint to add a Title VII claim).
17

The Court rejects Defendants’ argument that because Mazzola, a female, “made the termination
decision,” it “undermines any inference of discrimination.” (ECF No. 35-1 at 12.) “[T]here can be
no absolute presumption that a person of one race would not discriminate against another person
of the same race, there can be no absolute presumption that a person of one gender would not
discriminate against another person of the same gender,” Bibby v. Phila. Coca Cola Bottling Co.,
260 F.3d 257, 262 (3d Cir. 2001) (citing Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75,
80 (1998)). Indeed, the Supreme Court in Oncale “reasoned that it is not the sex of the harasser or
the victim that is important to a sexual harassment claim, but, rather, what is important is that the
victim ‘prove that the conduct at issue was not merely tinged with offensive sexual connotations,
but actually constituted ‘discriminat[ion] . . . because of . . . sex.’” 523 U.S. at 81 (citation omitted);
Cataldo v. Moses, Civ. A. No. 02-2588, 2005 WL 705359, at *14 (D.N.J. Mar. 29, 2005)
(providing that “in today’s society, allegations of sexual harassment could be made by men or
between people of the same gender, so this belief is insufficient to support his claim of gender
discrimination”).
17

•

Comments that men were “sensitive to size” when Plaintiff
attempted to reference a small amount of something. (Id. ¶ 45).

Further, Plaintiff alleges “[t]hese comments were made on every, or nearly every trip” that Plaintiff
worked on and “thus occurred regularly.” (Id. ¶ 47.)
To “state a claim under Title VII for discrimination resulting from a hostile work
environment, an employee must show that ‘(1) the employee suffered intentional discrimination
because of [her] sex, (2) the discrimination was pervasive and regular, (3) the discrimination
detrimentally affected the [employee], (4) the discrimination would detrimentally affect a
reasonable person of the same sex in that position, and (5) the existence of respondeat superior
liability.’” Andreoli v. Gates, 482 F.3d 641, 643 (3d Cir. 2007) (internal quotations omitted). “Not
every sexual comment, action or joke creates a hostile work environment.” Brown-Baumbach v.
B&B Auto, Inc., 437 F. App’x 129, 133 (3d Cir. 2011). Instead, the actions must be “sufficiently
severe or pervasive ‘to alter the conditions of [the plaintiff’s] employment and create an abusive
working environment.’” Mandel v. M&Q Packaging Corp., 706 F.3d 157, 167 (3d Cir. 2013)
(quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)). Courts apply the totality of
the circumstances test, which involves analyzing “the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee's work performance.” Mandel, 706 F.3d at
168; Hetzel v. Mabus, Civ. A. No. 157271, 2016 WL 4157311, at *3 (D.N.J. Aug. 4, 2016). At this
stage of the litigation, the alleged conduct, taken collectively, appears sufficiently severe and
pervasive to alter the conditions of Plaintiff’s employment.
Accordingly, for the reasons set forth above, Defendants’ Motion to Dismiss the Title VII
sex-based discrimination claim is DENIED.

18

ii.

Title VII and NJLAD Retaliation

Defendants argue Plaintiff’s Title VII retaliation claim fails because, among other reasons,
“[n]othing in the amended complaint alters the chronology of events that culminated in Plaintiff’s
termination.” (ECF No. 35-1 at 14.) Specifically, according to Defendants, “[t]here is no ‘unduly
suggestive’ temporal proximity alleged plausibly indicating an inference of retaliation.” (Id.)
Plaintiff contends the Amended Complaint “sufficiently alleges a claim for retaliation,” and “had
pled near immediate proximity in time between her complaints and the adverse actions.” (ECF No.
36-2 at 13.)
To establish a prima facie case of retaliation under Title VII, a plaintiff must establish: “(1)
the plaintiff engaged in protected activity; (2) the employer took a materially adverse action against
the plaintiff; and (3) there exists a causal connection between the adverse action and the protected
activity.” Lanza v. Postmaster Gen. of U. S., 570 F. App’x 236, 240 (3d Cir. 2014) (citing LeBoon
v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 231–32 (3d Cir. 2007)). A plaintiff asserting
a retaliation claim must allege that she made a complaint “implicat[ing] an employment practice
made illegal by Title VII.” Id. at 203; see also Spangler v. City of Phila., 523 F. App’x 142, 146
(3d Cir. 2013); Hetzel, 2016 WL 4157311, at *4.
Here, the parties mainly dispute whether Plaintiff alleges a causal connection between the
protected activity and adverse action. (See ECF No. 35-1 at 14; ECF No. 36-2 at 14–15.) The
Amended Complaint alleges that just six days after Plaintiff was informed the Blacks were “aware
of the entire situation” involving the incident between Plaintiff and Okrent as well as Plaintiff’s
“complaints about discrimination, harassment, and workplace safety issues,” Plaintiff was
terminated. (ECF No. 32 ¶ 111.) The Court is satisfied that Plaintiff’s Amended Complaint
suggests a close temporal proximity between the complained of discrimination and her

19

termination. See Lombard v. N.J. Dep’t of Transp., Civ. A. No. 1801319, 2018 WL 5617553, at
*8 (D.N.J. Oct. 30, 2018).
Accordingly, for the reasons set forth above, Defendants’ Motion to Dismiss Plaintiff’s
Title VII retaliation claim is DENIED.
IV.

CONCLUSION
For the reasons set forth above, Defendants’ Motion to Dismiss is DENIED. An

appropriate order follows.

Dated: April 26, 2021
/s/ Brian R. Martinotti
BRIAN R. MARTINOTTI
UNITED STATES DISTRICT JUDGE

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